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The Challenge of Change: Managing for Sustainability of Oceanic Top Predator Species Innovations in Institutions Jon M. Van Dyke Wm. S. Richardson School of Law University of Hawaii at Manoa. Elisabeth Mann Borgese. Highly Migratory Stocks.

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The scientific evidence is clear: global climate change caused by human activities is occurring now, and it is a growing threat to society. Accumulating data from across the globe reveal a wide array of effects: rapidly melting glaciers, destabilization of major ice sheets, increases in extreme weather, rising sea level, shifts in species ranges, and more. The pace of change and the evidence of harm have increased markedly over the last five years. The time to control greenhouse gas emissions is now.

Affects the rates of recruitment or growth, mortality and spatial distribution of commercial fish stocks –factors including water temperature, ocean currents or competition for available food (affect the availability of nutrients and disposition of larval and juvenile organisms)

There are two ways to take advantage of the ocean's natural carbon storage processes.

The first way is to increase the number of phytoplankton. Phytoplankton absorb carbon dioxide to use as fuel, and in the process, store carbon - in the same way that plants and trees on the land store carbon. Researchers have done experiments fertilizing the ocean with iron, in the same way that farmers fertilize their fields with animal waste or commercial fertilizers.

The second way that we can use

the ocean's natural system to store

carbon is by injecting liquid carbon

dioxide deep into the ocean where

it can dissolve into the water.

California firm enlists ocean plankton to fight climate change A San Francisco Bay area outfit is using heavy metal to help mitigate global warming. Planktos Inc. has developed a process to increase plankton populations by providing the microscopic organisms with iron nutrients. In return, the plankton sequesters carbon dioxide in exchange for oxygen during photosynthesis.

Plankton blooms suck carbon dioxide out of the air and release oxygen as a byproduct during photosynthesis, just like land-based forests. And with oceans covering some 70 percent of the Earth´s surface, plankton can sequester a substantial amount of greenhouse gas.

But plankton productivity has been dipping since the late 1970s, and iron has been the limiting element. Normally, wind blows iron dust from land to the open ocean, where plankton consumes it as a nutrient.

The acceptance by the negotiators at the United Nations Convention on the Law of the Sea of the simple direct and elegant language of Article 192 marked a turning point in the human stewardship of the ocean:

“States have the obligation to protect and

preserve the marine environment.”

* “obligation” = countries have positive

duties and responsibilities and must take action.

* “protect” and “preserve” = emphasize that countries must respect the natural processes of the ocean and must ensure that they continue for future generations.

Article 192 thus recognizes the profound responsibility that all countries have to govern the oceans in a manner that respects the marine creatures that inhabit them.

nationals exploit identical or associated species. Article 118 is mandatory in stating that nations “shall enter into negotiationswith a view to taking the measures necessary for the conservation of the living resources concerned” and suggests creating regional fisheries organizations, as appropriate.

More than 55 countries have ratified the Agreement, including most European countries, the United States, India, and Liberia,

But key fishing countries like Japan, South Korea, China, and most of the Latin American and African countries, and many of the countries providing flags of convenience have not yet ratified the Agreement.

Professor Rosemary Rayfuse has recently suggested that “even in the absence of...wider ratification, it is arguable that certain principles embodied in the [Straddling and Migratory Fish Stocks Agreement] and the [FAO] Compliance Agreement may now be binding on all states as a matter of customary international law.”

Her primary example of a provision that has become obligatory through state practice is “the obligation to co-operate in respect of high seas fisheries through the medium of RFMOs or other co-operative arrangments.”

* Scientists now understand that without “highly precautionary management,” most deep-sea fisheries are unmanageable, because the characteristics of deep-sea species – “long-life spans, late maturity, slow growth, and low fertility” – make them particularly vulnerable to overfishing.

* Recent research has revealed that

deep-sea species in the northern Atlantic

are on the brink of extinction because of

large-scale bottom trawling.

* Fisheries in the EEZs of the United States remain dangerously depleted, and members of the U.S. Ocean Commission and the Pew Commission issued a recent report saying that if immediate action is not taken the crisis will become irreversible in five to seven years.

the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

In developing criteria for allocation of the total allowable catch or the total level of fishing effort the Commission shall take into account:

* the historic fishing catch of participants “and the extent of the catch being utilized for domestic consumption”

* the needs of the small island developing states (SIDS) in the Convention Area “whose economies, food supplies and livelihoods are overwhelmingly dependent on the exploitation of marine living resources”

* “the fishing interests and aspirations of coastal States, particularly small island developing States, and territories and possessions, in whose areas of national jurisdiction the stocks also occur”

* the contributions to conservation and management of stocks, provision of accurate data, and contribution to scientific research

* the record of compliance with conservation and management measures

* the needs of coastal communities which are dependent mainly on fishing for the stocks

The allocation decisions that will be made by regional fishery management organizations in the next few years are extremely important, because it is almost inevitable that the allocation schemes will evolve into something akin to a “rights-based” system, and that countries will view their allocation quotas as a vested property right that they are entitled to maintain in future years.

Each allocation will thus have importance not just for the current year, but because it will set a baseline for future years, and states will seek to maintain and increase their allocation.

States will make investments in reliance on the allocations given to them, and they will

Others might suggest that utilizing historical fishing practices will inevitably reward the more developed countries, which have been able to finance large fishing operations, and will once again disadvantage developing countries.

Basing allocations on historical fishing activities will tend to reward those countries that have overcapitalized and subsidized their fishing fleets, thus giving benefits for activities that have distorted the market and which would be punished in other economic sectors.

Lodge & Nandan:“In fact, within many RFMOs, negotiated criteria for catch allocations are often based

sacrifices to monitor and maintain threatened fish stocks should receive some reward for their actions.

Article 66 of the Law of the Sea Convention, which says that “[s]tates in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.”

Because the spawning habitat of salmon must be maintained carefully to enable them to reproduce successfully, countries that maintain their river systems to permit successful spawning can reap the bounty of the salmon harvest.

If we extrapolate from this principle, we should find ways of rewarding countries that invest in the monitoring and maintenance of fish stocks by giving them allocation bonuses.

1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.

3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin….

* Geographical proximity to the fish stocks must be recognized as an important element of any allocation scheme.

* Countries that make expenditures to monitor and maintain the fish stocks should be rewarded with enhanced allocations.

* Those countries that misbehave by abusing the flag-of-convenience system, by permitting IUU fishing, by allowing their vessels to engage in destructive high-seas bottom trawling, and by subsidizing their fishing industry should be punished by having their allocations reduced.

* The population of a country, its historical dependence on the fisheries in question, and its historical consumption of sea food and need for it as “food security” are also relevant considerations, although of less importance than those listed above.

Decisions must, of course, be made through a transparent process, and by consensus whenever possible.

* Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Ecosystem Monitoring Program (CEMP) – designed to detect changes in the condition, abundance and distribution of creatures within the Convention Area.

** December 2002 Observations of Ecosystem Change -- discussing the latest information on the trends of the marine ecosystems off Alaska, and how this information might be used in the fishery management process.